Bombay High Court
Kawade Construction Thr Its ... vs Munincipal Council Kalamb Thr Its ... on 2 December, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
1 WP-2578-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2578 OF 2021
Kawade Construction, Hawargaon Road,
Shivaji Nagar, Kalamb, Through Authorized
Representative, Vijay Annasaheb Parve .... Petitioner.
Versus
1. Municipal Council, Kalamb,
District Osmanabad, through,
Chief Officer,
2. Snesu Hyel Pvt. Ltd., Kalamb,
Tq. Kalamb, District Osmanabad ... Respondents.
...
Mr. N.B. Khandare, Advocate for petitioner
Mr. K.K. Kulkarni and Mr. A.G. Deshmukh, Advocate for respondent No. 1
Mr. S.G. Jadhavar, Advocate for respondent No. 2
...
CORAM : S. V. GANGAPURWALA AND
R. N. LADDHA, JJ.
DATE : 2nd DECEMBER, 2021
PER COURT :-
The petitioner seeks directions against respondent No. 1 to accept
the petitioner's tender.
2. Mr. Khandare, learned Advocate for the petitioner submits that
pursuant to e-tender notice No.6/202/2021 published by Municipal
Council, Kallamb, District Osmanabad, the petitioner had attempted to
upload the tender form, but was unsuccessful, as the system did not accept
the same and the message on the portal showed "error." Further, no One
Time Password (OTP) was generated though several attempts were made
to submit the form. The petitioner has deposited an amount of
Rs. 97,402/- and Rs. 2,42,698/-against tender fees, as EMD for two tenders
2 WP-2578-21.odt
and the amount was duly received by the Municipal Council.
3. The petitioner made complaint to the Chief Officer of the Municipal
Council that the petitioner could not submit its tender due to technical
error, displayed on the portal and as such time may be extended. The
complaint was also made to the Collector to that effect. It shows that three
tenders were received and they were opened on 24-10-2020. According to
learned counsel for the petitioner, it was malafide act on the part of
respondent No.1 in not extending the time. The learned counsel further
submits that because of the technical glitches, if participant in the tender
process is not in a position to tender the bid for no fault on his part, under
such case, time ought to have been extended to enable the tenderer to fill-
up the tender.
4. Learned counsel for the petitioner placed reliance on the Judgment
of this Court in the case of Shapoorji Pallonji and Company Private Limited
Versus State of Maharashtra, reported in Laws (Bom)-2017-9-309. The
learned counsel for petitioner further submits that one Mr. Shridatta
Trimbake is working as Head of the Computer Section of Municipal
Council, Kallamb. He has taken digital signature of Ashok Kaleshwar
Fartade, working as Accountant in the Municipal Council. The digital
signature of Shri Phartade was used for publishing tender. Mr Phartade has
made complaint on 26-10-2020 to the Chief Officer that Mr. Shridatta
Trimbake has prepared digital signature for setting password / OTP and he
did not return the key to him and without his consent key was used for
3 WP-2578-21.odt
tender process. This shows malafides. The learned counsel further submits
that after reaching the stage of Bill of Quantity (BOQ), the error displayed
on the screen ("Bidder BOQ-1 status does not comply") and a window for
submission of password was also opened on the screen, however, such
password/OTP was never generated. The tender process is tainted with
malafide and fraud.
5. Mr. Kulkarni, learned counsel for respondent No. 1 - Municipal
Council submits that the Computer Engineer has set digital signature of the
Accountant by virtue of the order of the Chief Officer to float a tender.
The petitioner cannot take undue advantage of the same.
6. Upon receiving the complaint of the petitioner, the Collector Office,
Osmanabad sought clarification from National Informatics Center (NIC) i.e
Agency for conducting the tender process. National Informatics Center
under its communication dated 09-11-2020 clarified that bids cannot be
hidden on the portal. The learned Advocate further submits that entire
process has been properly followed. On the same day, three tenderers have
submitted their tenders and they have not faced any technical error.
7. We have considered the submissions.
8. The fact remains that till last date of filing of the tender, the
petitioner could not upload the tender. The petitioner made complaint that
because of the technical problem, the tender form of the petitioner is not
accepted on-line and he requested for extension of time. It would appear
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that on the same day three tenderers filled in their tenders and they did not
face any technical glitches. The time stipulation for the tender will have to
be abided by. The other persons filling in the tender did not come across
any technical glitches. Only petitioner could not fill up the tender, it would
be inappropriate to extend the time, more particularly when fault does not
lay with respondent. In the case of Shapoorji Pallonji (Supra) the facts were
different. The petitioners therein relied upon a screenshot on the bid
screen, confirming such uploading on the date of submission to
demonstrate that their envelope Nos 1 and 2 were duly uploaded on the
scheduled date and before the scheduled time prescribed. It is in those
facts, the Division Bench of this Court had directed to accept the tender of
the petitioners therein. In the present case, admittedly, the petitioner could
not upload his tender may be for one or the reasons, but not on account of
the fault of respondent No. 1. In the circumstances the petitioner cannot
claim extension of time as of right to upload the tender.
9. There is another facet of the case. The work order is already issued
in favour of respondent No. 2 on or about 1 st February, 2021. More than
half of the period under work order is already over. It would also not be
expedient to stall the work at this stage. Considering all these aspects of the
matter, no case for interference is made out. Writ Petition is disposed of.
No costs.
( R. N. LADDHA ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
mtk
